Interpreting Chamberlain's Reasonable Relation Between Access and Infringement in the Digital Millennium Copyright Act 2008 B.C

Boston College Intellectual Property & Technology Forum http://www.bciptf.org INTERPRETING CHAMBERLAIN'S “REASONABLE RELATION” BETWEEN ACCESS AND INFRINGEMENT IN THE DIGITAL MILL Zoe Argento I. INTRODUCTION Seven years have passed since Congress enacted the Digital Millennium Copyright Act (DMCA), the statute which makes circumventing technological barriers to copyrighted works illegal. [1] In the meantime, the DMCA has been widely criticized, and, within the last two years, undergone a major change in interpretation by the Federal Circuit in Chamberlain Group, Inc. v. Skylink Technologies, Inc. [2] In Chamberlain, concerned that the DMCA had created an entirely new property right, the Federal Circuit added a new limitation to the scope of the DMCA. Chamberlain held that a plaintiff must prove a “reasonable relation” between access to a copyrighted work and infringement. What this “reasonable relation” means however, has yet to be defined. The nature of the “reasonable relation” test goes to the heart of the DMCA and its impact on innovation. If the “reasonable relation” between access and infringement is too broad, the DMCA will stifle many ideas which build on protected works, because the public will be prevented from accessing works for the purpose of creating improved versions and interoperable products. Innovation depends in large measure upon building on the works of others. As Sir Isaac Newton famously said, “If I have seen farther than others, it is because I have stood upon the shoulders of giants.” [3] On the other hand, if the “reasonable relation” is too narrow, then the DMCA would prohibit too little access. Creative works in digital formats would be subject to massive piracy. Creators would then lose the profit incentive to create any works at all. In this paper, I suggest six possible “reasonable relations:” 1) ‘but for’ causality, 2) reasonable foreseeability, 3) Sony's [4] substantial non-infringing use, 4) defendant's intent, 5) vicarious liability, and 6) Judge Posner's balancing approach in In Re Aimster. [5] I evaluate these possible “reasonable relations” in light of the policies underlying copyright law and the DMCA using the facts of Davidson & Associates v. Jung [6] as a test case. I show how these different possible “reasonable relations” would play out in the facts of Davidson because these facts demonstrate the complexity of digital technology. Moreover, Davidson illustrates the pitfalls and promise of the internet revolution. In Davidson, the plaintiffs worried about mass piracy of video games they had invested millions of dollars to create. [7] Meanwhile, the defendants created an improved network on which to play the games [8] -- precisely the type of innovation and creativity that copyright law is intended to promote. The second part of this paper discusses copyright law and the DMCA. In the third part, I examine the interpretation of the DMCA in Chamberlain. The fourth part introduces Davidson and discusses the correct outcome given copyright law policies. I apply Chamberlain's interpretation of the DMCA to the facts in Davidson in the fifth part and discuss which “reasonable relations” would produce the right result in light of copyright law policies. Finally, I give my conclusions. II. COPYRIGHT POLICIES AND THE DMCA Copyright law is ultimately concerned with encouraging the production of creative works for the benefit of the public. [9] Legal protection and propertization of creative works is intended to serve the public by allowing the creator to profit from her creation. Imagine a writer who works for years to write the Great American Novel. She invests her time, resources, and savings in the book. As soon as she publishes it, however, a competitor makes hundreds of copies and steals the author's sales by underselling her book. As a result, the author may not be able to charge a price which will compensate her for time invested in writing the book. This deters her from writing a novel in the future. At least in theory, the DMCA, as a component of copyright law, should serve the same goal of encouraging Copyright © 2008 Boston College Intellectual Property & Technology Forum, Zoe Argento 1 Boston College Intellectual Property & Technology Forum http://www.bciptf.org production of creative works. Congress passed the DMCA to counter the digital threat to copyright. [10] Unlike previous modes of fixing expression, digitalized information can be copied ad infinitum without loss of quality. Moreover, the internet and general access to personal computers make copyright violation of expression in digital format more like the spread of infectious disease than the old mode of point source copying. [11] In the past, the copyright owner could shut down one printing press to stop illegal copying. Now, millions of personal computers function like illegal printing presses, and illegal copying spreads rapidly across the world through the internet. The DMCA deals with this enforcement problem by making the enabling point source, liable. The enabling point source is a person who does not infringe, but who makes copyrighted material accessible to others through circumvention. By assisting enforcement, the drafters hoped to even the playing field between copyright owners and the public in the digital age. [12] The DMCA has two primary liability provisions: the anti-circumvention provisions Section 1201(a)(1), and the anti-trafficking provision Section 1201(a)(2). The anti-circumvention provision reads, “No person shall circumvent [without authority] a technological measure that effectively controls access to a [copyrighted] work ....” [13] To explain with an analogy, imagine a copyrighted book in a locked box. The lock on the box is the “technological measure that effectively controls access.” [14] The book inside is the copyrighted work. [15] If someone picks the lock without obtaining permission, that person would be liable under Section 1201(a)(1) for illegal circumvention. The anti-trafficking provision makes a circumventer liable for making access available to the public. [16] The key difference between Sections 1201(a)(1) and 1201(a)(2) is that the latter section requires that the defendant offer the circumvention technology to the public. [17] To return to the locked box analogy, you would be liable under the anti-trafficking provision if you made a key that opened the lock, and then made copies of those keys available to the public. [18] III. RE-INTERPRETATION OF THE DMCA IN CHAMBERLAIN Chamberlain dramatically changed the interpretation of Section 1201(a) by adding the requirement that access have a ‘reasonable relationship’ to infringement. [19] The Federal Circuit in Chamberlain reasoned that simply circumventing a technological measure which protects a copyrighted work should be legal, unless the access was connected in some way to the infringement. [20] Otherwise, the DMCA would lead to at least three results which create a new property right in addition to and separate from copyright. [21] First, a consumer would be prevented from accessing copyrighted material to which he already had legal access through his purchase. [22] This was the case in Chamberlain. [23] In Chamberlain, the plaintiff manufactured garage door openers: both the mechanism inside the garage which opened the door and the remote control with which users could open the door from outside the garage. [24] Often, owners of these garage door openers would lose the remote control, so the defendants created a universal remote control. [25] The universal remote sent a radio signal to plaintiff's mechanism inside the garage which overcame a technological lock and opened the garage door. [26] The plaintiff asserted a DMCA violation because the defendants' remote circumvented a technological lock to access the copyrighted software inside the garage door opener. [27] The Federal Circuit, however, held that since the consumer already had access to the software inside the garage door opener by legally purchasing it, there was no possibility of infringement and therefore no violation of the DMCA. [28] Second, the DMCA would allow copyright owners to insert one line of copyrighted code amid uncopyrighted material and simply slap a protective technological measure across everything. [29] Then, anyone who circumvented the technological measure to access uncopyrightable material would be liable under the DMCA because the technological measure protected any copyrighted material no matter how miniscule it might be. [30] In this case, the DMCA would create a property right in uncopyrighted material. Moreover, this situation potentially violates antitrust law by extending the copyright monopoly to unrelated material. [31] Third, a circumventer could be liable under the DMCA even if she lacked any intent to infringe the copyrighted material protected by a technological lock. The Federal Circuit Court noted that disabling a burglar alarm to a house Copyright © 2008 Boston College Intellectual Property & Technology Forum, Zoe Argento 2 Boston College Intellectual Property & Technology Forum http://www.bciptf.org with a copyrighted books inside would be a per se violation of the DMCA -- an “absurd” result. [32] Of course, the idea behind the DMCA is to prevent circumvention without infringement in order to make the enabling point source liable. For example, Jon Johansen, the teenager who unencrypted the CSS lock on DVDs, may not have committed copyright infringement himself, but by publishing the decryption code on the Internet, he made it possible

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